THESE TERMS AND CONDITIONS ARE INCORPORATED IN FULL BY REFERENCE TO YOUR MASTER SERVICE AGREEMENT AND APPLICABLE STATEMENTS OF WORK. ALL CAPITALIZED TERMS USED HEREIN SHALL HAVE SAME MEANINGS ASCRIBED TO THEM IN YOUR MASTER SERVICE AGREEMENT.
1. PAYMENT. Customer will pay MSP all fees due upon receipt of an invoice specifying the amounts due ("Fees"). All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Customer will pay (excluding taxes based upon the net income of MSP). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with state or federal law) per month from the date due until paid in full. Customer shall pay all expenses, including actual attorneys’ fees, incurred by MSP or its representatives in enforcing its rights under this Agreement, provided that MSP is successful on the merits. Customer’s obligation to pay undisputed amounts due for Services and MSP’s right to all such amounts are absolute and unconditional. Customer is not entitled to setoff of such amounts.
CUSTOMER TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS ARE INCORPORATED IN FULL BY REFERENCE TO YOUR MASTER SERVICE AGREEMENT AND APPLICABLE STATEMENTS OF WORK. ALL CAPITALIZED TERMS USED HEREIN SHALL HAVE SAME MEANINGS ASCRIBED TO THEM IN YOUR MASTER SERVICE AGREEMENT.
1. PAYMENT. Customer will pay MSP all fees due upon receipt of an invoice specifying the amounts due("Fees"). All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Customer will pay (excluding taxes based upon the net income of MSP). If payment is notreceived on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with state or federal law) per month from the date due until paid in full. Customer shall pay all expenses, including actual attorneys’ fees, incurred by MSP or its representatives in enforcing its rights under this Agreement, provided that MSP is successful on the merits. Customer’s obligation to pay undisputed amounts due for Services and MSP’s right to all such amounts are absolute and unconditional. Customer is not entitled to setoff of such amounts. All Fees will be detailed in a Statement of Work. Unless otherwise stated in a Statement of Work, Customer agrees to pay or reimburse MSP for all actual, necessary, and reasonable expenses incurred by MSP in performance of such Statement of Work, which are capable of verification by receipt. MSP will submit invoices to Customer for such fees and expenses either upon completion of Services, or at stated intervals, in accordance with the applicable Statement of Work.
2. CONFIDENTIALITY AND NON-DISCLOSURE. Both Parties to this Agreement recognize that, from time to time, they may come into contact with information that the other Party considers confidential. “Confidential Information” is defined for this Agreement as all information (whether written or oral) that comes into a Party’s possession under or in connection with this Agreement that is reasonably considered by the disclosing Party to be confidential and is clearly identified as confidential. The Parties shall keep all Confidential Information in strict confidence. The recipient will use a reasonable standard of care in protecting Confidential Information, which will not be less than the standard of care the recipient uses to protect its own confidential information; only use Confidential Information to perform its obligations and exercise its rights under this Agreement; not disclose Confidential Information to any third party; when requested by the disclosing Party, return or destroy the Confidential Information.
3. PROVISION OF MATERIALS AND SERVICES TO MSP. Customer agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces for purposes of MSP performing Services. Customer will also provide MSP with access to all information, passwords and facilities requested by MSP that is necessary for MSP to perform Services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, but Customer understands that MSP may be unable to perform its duties adequately, and if such a situation should exist, MSP will be held harmless.
4. WORKING ENVIRONMENT. Customer shall provide a suitable working environment for any Product located at Customer’s facility. Such environment includes, but is not limited to, the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Product. Customer shall bear the risk of loss of any Product located at Customer’s facility.
5. CUSTOMER RESPONSIBILITY FOR EQUIPMENT. Customer acknowledges that from time to time (a) MSP may identify additional items that need to be purchased by Customer, and (b) changes in Customer’s systems may be required in order for MSP to meet Customer’s requirements. In connection therewith, Customer agrees to work in good faith with MSP to effectuate such purchases or changes. In the event that MSP is required to purchase any assets, including computer hardware and/or software, in connection with MSP providing Services, all such assets will remain the sole property of MSP unless specifically stated otherwise in writing. Customer will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to MSP do not infringe or violate the rights of any third party. Customer will maintain adequate backup for all data and other items furnished to MSP.
It is Customer’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to MSP’s Products or Services, and MSP disclaims all responsibility for any loss including data.
6. CUSTOMER DATA OWNERSHIP AND RESPONSIBILITY. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by Customer to MSP.
6.1. Software Installation or Replication. If MSP is required to install or replicate Customer software as part of Services, Customer will independently verify that all such software is properly licensed. Customer’s act of providing any software to MSP will be deemed Customer’s affirmative acknowledgement to MSP that Customer has a valid license that permits MSP to perform Services related thereto. In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software unless MSP, in a written Statement of Work, expressly agrees to conduct such monitoring. Customer will indemnify and hold harmless MSP against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Customer providing infringing materials to MSP or any Customer breach of this Section.
7. INTELLECTUAL PROPERTY. MSP retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Customer acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
7.1. Customer may only use and disclose Product in accordance with the terms of this Agreement and applicable Statements of Work. MSP reserves all rights in and to the Product not expressly granted in this Agreement. Customer may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product's source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without MSP’s prior written approval. Except as expressly authorized in this Agreement or a Statement of Work, Customer may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate Product in an outsourcing or MSP business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in Product-applicable installation instructions or release notes that will contain the relevant details.
7.2. License Agreements. (a) License. Subject to the terms of this Agreement, MSP grants Customer a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other Product provided as part of the Services solely for its own internal use. (b) Pre-Existing License Agreements. Any software Product provided to Customer by MSP as a reseller for a third party, which is licensed to Customer under a separate software license agreement with such third party, will continue to be governed by the third-party license agreement. (c) EULA. Customer hereby grants permission to MSP to sign all EULA’s necessary for any software Product installed on Customer’s computer system.
7.3. Third-Party Products. Product warranties for third-party products, if any, are provided by the manufacturers thereof and not by MSP. MSP’S sole obligation is to act on behalf of Customer to assist in the satisfaction of any such warranty.
8. WARRANTY. MSP warrants that it will perform Services substantially in accordance with the specifications set forth whether under this Agreement and any Statement of Work or otherwise in connection with any of them. For any breach of the foregoing warranty, MSP will exercise commercially reasonable efforts to re- perform any non-conforming Services that were performed within the ten (10) business day period immediately
preceding the date of Customer’s written notice to MSP specifying in reasonable detail such non-conformance. If MSP concludes that conformance is impracticable, then MSP will refund all Fees paid by Customer to MSP hereunder, if any, allocable to such nonconforming Services. Notwithstanding the above, MSP does not warrant its Products or Services beyond a reasonable standard or skill consistent with industry standards. MSP does not guarantee or promise any cost savings, profits, or returns on investment.
9. SOFTWARE HARDWARE & SECURITY. Customer understands and agrees that data loss or network failures may occur, whether or not foreseeable, if Customer fails to maintain proper security for its computer and information system, including software and hardware updates. Customer therefore warrants that it will follow all necessary software and hardware updates and maintain specific security standards, policies, procedures.
10. TERRORISM AND CYBER TERRORISM. In no event, including the negligent act or omission on its part, shall MSP, whether under this Agreement and any Statement of Work or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut- down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
11. TELEMARKETING & UNSOLICITED EMAILS. In no event, including the negligent act or omission on its part, shall MSP, whether under this Agreement and any Statement of Work or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if the Customer’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic “spiders”, “spybots”, “spyware”, wire tapping, bugging, video cameras or identification tags.
12. EXTRAORDINARY EVENTS. In no event, including the negligent act or omission on its part, shall MSP, whether under this Agreement and any Statement of Work or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third- party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical or telecommunications infrastructure or services not under MSP’s control, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God or other physical event.
13. LIMITATIONS OF LIABILITY. EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL MSP BE LIABLE TO CUSTOMER FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEE OR FOR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT WITH RESPECT TO INDEMNITIES ARISING OUT
OF IP CLAIMS. UNDER NO CIRCUMSTANCES, SHALL MSP’S AGGREGATE LIABILITY ARISING FROM OR OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE FEES PAID UNDER THIS AGREEMENT. MSP SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DELAY IN DELIVERY OR PERFORMANCE, OR FAILURE TO DELIVER OR PERFORM AT OR WITHIN THE DEADLINES SET FORTH IN THIS AGREEMENT UNLESS SUCH DELAY OR FAILURE IS A RESULT OF MSP’S NEGLIGENCE.
14. INSURANCE. MSP agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by the following insurance policies, MSP will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for owned, hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).
15. DISCLAIMERS. The express remedies set forth in this Agreement will constitute Customer’s exclusive remedies, and MSP’s sole obligation and liability, for any claim (a) that Services or Products provided hereunder do not conform to specifications or is otherwise defective, or (b) that Services were performed improperly. MSP shall not be responsible for impairments to Services caused by acts within the control of Customer or its employees, agents, contractors, suppliers or licenses, the interoperability of Customer applications, or other cause reasonably within Customer’s control and not reasonably related to Services provided under this Agreement. MSP shall not be responsible for any claims, damages, or failure of Services or Products due to Customer’s use, or requirement for MSP to use, Customer-provided hardware.
EXCEPT FOR THE WARRANTIES MADE BY MSP IN SECTION 8, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CUSTOMER, THE SERVICES AND PRODUCTS ARE PROVIDED STRICTLY “AS-IS.” MSP DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT. MSP DOES NOT WARRANT THAT THE SERVICES OR ANY PRODUCTS WILL MEET ANY CUSTOMER REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY PRODUCTS WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF ANY PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any MSP employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.
Fees will be detailed in a Statement of Work. Unless otherwise stated in a Statement of Work, Customer agrees to pay or reimburse MSP for all actual, necessary, and reasonable expenses incurred by MSP in performance of such Statement of Work, which are capable of verification by receipt. MSP will submit invoices to Customer for such fees and expenses either upon completion of Services, or at stated intervals, in accordance with the applicable Statement of Work. 2. CONFIDENTIALITY AND NON-DISCLOSURE. Both Parties to this Agreement recognize that, from time to time, they may come into contact with information that the other Party considers confidential. “Confidential Information” is defined for this Agreement as all information (whether written or oral) that comes into a Party’s possession under or in connection with this Agreement that is reasonably considered by the disclosing Party to be confidential and is clearly identified as confidential. The Parties shall keep all Confidential Information in strict confidence. The recipient will use a reasonable standard of care in protecting Confidential Information, which will not be less than the standard of care the recipient uses to protect its own confidential information; only use Confidential Information to perform its obligations and exercise its rights under this Agreement; not disclose Confidential Information to any third party; when requested by the disclosing Party, return or destroy the Confidential Information. 3. PROVISION OF MATERIALS AND SERVICES TO MSP. Customer agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces for purposes of MSP performing Services. Customer will also provide MSP with access to all information, passwords and facilities requested by MSP that is necessary for MSP to perform Services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, but Customer understands that MSP may be unable to perform its duties adequately, and if such a situation should exist, MSP will be held harmless. 4. WORKING ENVIRONMENT. Customer shall provide a suitable working environment for any Product located at Customer’s facility. Such environment includes, but is not limited to, the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Product. Customer shall bear the risk of loss of any Product located at Customer’s facility. 5. CUSTOMER RESPONSIBILITY FOR EQUIPMENT. Customer acknowledges that from time to time (a) MSP may identify additional items that need to be purchased by Customer, and (b) changes in Customer’s systems may be required in order for MSP to meet Customer’s requirements. In connection therewith, Customer agrees to work in good faith with MSP to effectuate such purchases or changes. In the event that MSP is required to purchase any assets, including computer hardware and/or software, in connection with MSP providing Services, all such assets will remain the sole property of MSP unless specifically stated otherwise in writing. Customer will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to MSP do not infringe or violate the rights of any third party. Customer will maintain adequate backup for all data and other items furnished to MSP. It is Customer’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to MSP’s Products or Services, and MSP disclaims all responsibility for any loss including data. 6. CUSTOMER DATA OWNERSHIP AND RESPONSIBILITY. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by Customer to MSP. 6.1. Software Installation or Replication. If MSP is required to install or replicate Customer software as part of Services, Customer will independently verify that all such software is properly licensed. Customer’s act of providing any software to MSP will be deemed Customer’s affirmative acknowledgement to MSP that Customer has a valid license that permits MSP to perform Services related thereto. In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software unless MSP, in a written Statement of Work, expressly agrees to conduct such monitoring. Customer will indemnify and hold harmless MSP against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Customer providing infringing materials to MSP or any Customer breach of this Section. 7. INTELLECTUAL PROPERTY. MSP retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Customer acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement. 7.1. Customer may only use and disclose Product in accordance with the terms of this Agreement and applicable Statements of Work. MSP reserves all rights in and to the Product not expressly granted in this Agreement. Customer may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product's source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without MSP’s prior written approval. Except as expressly authorized in this Agreement or a Statement of Work, Customer may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate Product in an outsourcing or MSP business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in Product-applicable installation instructions or release notes that will contain the relevant details. 7.2. License Agreements. (a) License. Subject to the terms of this Agreement, MSP grants Customer a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other Product provided as part of the Services solely for its own internal use. (b) Pre-Existing License Agreements. Any software Product provided to Customer by MSP as a reseller for a third party, which is licensed to Customer under a separate software license agreement with such third party, will continue to be governed by the third-party license agreement. (c) EULA. Customer hereby grants permission to MSP to sign all EULA’s necessary for any software Product installed on Customer’s computer system. 7.3. Third-Party Products. Product warranties for third-party products, if any, are provided by the manufacturers thereof and not by MSP. MSP’S sole obligation is to act on behalf of Customer to assist in the satisfaction of any such warranty. 8. WARRANTY. MSP warrants that it will perform Services substantially in accordance with the specifications set forth whether under this Agreement and any Statement of Work or otherwise in connection with any of them. For any breach of the foregoing warranty, MSP will exercise commercially reasonable efforts to re- perform any non-conforming Services that were performed within the ten (10) business day period immediately preceding the date of Customer’s written notice to MSP specifying in reasonable detail such non-conformance. If MSP concludes that conformance is impracticable, then MSP will refund all Fees paid by Customer to MSP hereunder, if any, allocable to such nonconforming Services. Notwithstanding the above, MSP does not warrant its Products or Services beyond a reasonable standard or skill consistent with industry standards. MSP does not guarantee or promise any cost savings, profits, or returns on investment. 9. SOFTWARE HARDWARE & SECURITY. Customer understands and agrees that data loss or network failures may occur, whether or not foreseeable, if Customer fails to maintain proper security for its computer and information system, including software and hardware updates. Customer therefore warrants that it will follow all necessary software and hardware updates and maintain specific security standards, policies, procedures. 10. TERRORISM AND CYBER TERRORISM. In no event, including the negligent act or omission on its part, shall MSP, whether under this Agreement and any Statement of Work or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut- down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom. 11. TELEMARKETING & UNSOLICITED EMAILS. In no event, including the negligent act or omission on its part, shall MSP, whether under this Agreement and any Statement of Work or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if the Customer’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic “spiders”, “spybots”, “spyware”, wire tapping, bugging, video cameras or identification tags. 12. EXTRAORDINARY EVENTS. In no event, including the negligent act or omission on its part, shall MSP, whether under this Agreement and any Statement of Work or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third- party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical or telecommunications infrastructure or services not under MSP’s control, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God or other physical event. 13. LIMITATIONS OF LIABILITY. EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL MSP BE LIABLE TO CUSTOMER FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEE OR FOR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT WITH RESPECT TO INDEMNITIES ARISING OUT OF IP CLAIMS. UNDER NO CIRCUMSTANCES, SHALL MSP’S AGGREGATE LIABILITY ARISING FROM OR OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE FEES PAID UNDER THIS AGREEMENT. MSP SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DELAY IN DELIVERY OR PERFORMANCE, OR FAILURE TO DELIVER OR PERFORM AT OR WITHIN THE DEADLINES SET FORTH IN THIS AGREEMENT UNLESS SUCH DELAY OR FAILURE IS A RESULT OF MSP’S NEGLIGENCE. 14. INSURANCE. MSP agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by the following insurance policies, MSP will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for owned, hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000). 15. DISCLAIMERS. The express remedies set forth in this Agreement will constitute Customer’s exclusive remedies, and MSP’s sole obligation and liability, for any claim (a) that Services or Products provided hereunder do not conform to specifications or is otherwise defective, or (b) that Services were performed improperly. MSP shall not be responsible for impairments to Services caused by acts within the control of Customer or its employees, agents, contractors, suppliers or licenses, the interoperability of Customer applications, or other cause reasonably within Customer’s control and not reasonably related to Services provided under this Agreement. MSP shall not be responsible for any claims, damages, or failure of Services or Products due to Customer’s use, or requirement for MSP to use, Customer-provided hardware. EXCEPT FOR THE WARRANTIES MADE BY MSP IN SECTION 8, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CUSTOMER, THE SERVICES AND PRODUCTS ARE PROVIDED STRICTLY “AS-IS.” MSP DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT. MSP DOES NOT WARRANT THAT THE SERVICES OR ANY PRODUCTS WILL MEET ANY CUSTOMER REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY PRODUCTS WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF ANY PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. No statement by any MSP employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.